Yarnell homeowners blocked from suing state

In this June 30, 2013 file photo, a wildfire burns homes in Yarnell, Ariz. The wildfire that began with a lightning strike and caused little immediate concern because of its remote location and small size quickly blazed into an inferno, leading officials to rapidly order more resources in the hours before flames killed 19 members of an elite Hotshot crew, according to a report released Monday, July 15, 2013. (AP Photo/The Arizona Republic, David Kadlubowski, File)

The state’s highest court won’t let homeowners burned out by the Yarnell Hill fire sue the state for negligence.

And that, according to an attorney for those affected, has bad implications for others who own property throughout the state.

Without comment, the Arizona Supreme Court has spurned a request by the lawyers for those who lost buildings in the 2013 blaze that they should be able to make their case to a jury that the state, which was trying to contain the wildfire that started on public lands, also had a duty to protect their property. More to the point, attorney David Abney said they were required to do so in a fashion that was not negligent.

Instead, the justices left intact a lower court ruling, which told the homeowners they have no legal recourse.

Abney said the message is clear.

“My advice is – you’d better look out for yourself,” he told Capitol Media Services. “Don’t rely on the state.”

He said the essence of the court’s action goes beyond whether state officials, in trying to contain a fire that started on public lands, also have an obligation to keep it spreading to nearby properties.

Abney said there is evidence that fire officials not only told Yarnell homeowners they would protect their lives and property but that they actually made an effort to do it. And he said the general common law has always been that, once someone agrees to do something, even voluntarily, they have a duty to perform it in a non-negligent manner.

What makes all the significant, he said, is the residents relied on that.

“If the people of Yarnell had understood the state was going to do this incredibly incompetently, and the state was going to do a late and improper evacuation notice, they could have taken some measures to protect themselves,” Abney explained.

“They could have gotten their personal possession out, their pets and livestock out,” he continued. “They could have removed propane tanks that blew up in the fire. They could have removed their excess vehicles.”

Abney said they could have done other things to protect their buildings, including emergency brush removal and flooding their property to make it as fire resistant as possible.

There is evidence of negligence in connection with the blaze that killed 19 members of the Granite Mountain Hotshots and destroyed more than 120 homes.

An investigation by the state Industrial Commission said that at the time of the fire, the state Forestry Division had vacancies in the positions of both safety officer and the planning section chief. Marshall Krotenberg, the lead investigator for the commission’s Division of Occupational Safety and Health, said that meant no one was available to pay attention primarily to the safety of the firefighters versus simply battling the blaze.

Commission members also said there was a failure to properly plan how to battle the blaze, especially after initial efforts at suppression failed.

Abney had his own list of issues.

“The management was absolutely abysmal,” he said.

“In fact, one of the managers of the aerial effort left and went home,” Abney said, leaving a subordinate in charge. “The aerial effort collapsed at that point.”

What makes all that relevant, Abney argued in his legal papers, is that the state did make some efforts to protect the community.

That, he said, means the homeowners had some legal right to assume they would do the job correctly. His lawsuit sought to present all that to a jury.

But the case never got that far.

Appellate Judge Kent Cattani, writing an extensive ruling earlier this year for the court of appeals, said all of Abney’s arguments about state incompetence, even if true, are legally irrelevant.

The judge said anything the state forester did was within his discretion for how best to protect state lands and not designed to benefit and protect the property of the residents. So, they had no right to rely on the state to protect them.

Abney had no better luck with his claim that the state, which owns the land where the fire started, was responsible for ensuring that it did not spread.

Cattani said there might be some claim if the state had started the fire or created artificial conditions that resulted in the fire starting or spreading. But he said there was no liability because the evidence was that the fire “arose from a natural cause on land that remained unused and in natural condition.”

It was that ruling which the Supreme Court, with its new order, left undisturbed. And that made the published decision of the appellate court the law in Arizona.

Abney said that’s not a good result.

“The state apparently can’t be held liable, no matter how reckless, negligent or unprofessional it may be,” he said.

“The state has an endless ‘get-out-of-jail card,’” he said of the ruling. “And that’s not the way things should be.”

Abney, who represented the mother of Grant McKee, one of the firefighters killed in the blaze in a separate lawsuit, stressed that he is not being critical of the people on the ground trying to contain it.

“You have an incredible group of very talented, dedicated people who want to combat these wildfires, who want to protect the communities in these areas,” he said. “They just need good leadership.”

But Abney had no better luck with that lawsuit.

A separate panel of the Court of Appeals said that McKee and his colleagues, who were employees of the city of Prescott, were effectively working that day as employees of the state. And workers who are killed on the job are generally not entitled to sue their employer but instead get only the benefits provided under the state’s workers’ compensation system, meaning a set percentage of what they were earning.

The only exception is in cases of “willful misconduct.” But the appellate judges said Marcia McKee presented no evidence that the action of the state that day fit that definition.